Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Condemnation of Premises 320 Crestview Circle, Nether Providence Township, Delaware County, by the Pennsylvania Department of Transportation for Highway Purposes, No. 78-08296.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 68 Pa. Commw. Page 507]

This appeal arises from a petition filed by the petitioners, Richard W. and Hannah F. Merrick, requesting appointment of a jury of view, pursuant to Section 502(e) of the Eminent Domain Code (Code),*fn1 because of an alleged de facto taking of their property. On June 26, 1978 a jury of view was appointed, and on November 24, 1978 the Commonwealth filed preliminary objections in the nature of a demurrer, asserting

[ 68 Pa. Commw. Page 508]

that there had been no taking, to which the petitioners filed an answer three days later. Following two evidentiary hearings, the Court of Common Pleas of Delaware County sustained the preliminary objections, dismissed the petition and discharged the jury of view. This appeal followed.

By letter of February 10, 1967, the Pennsylvania Department of Transportation (DOT) had informed the petitioners that DOT employees or contractors would be entering upon the petitioners' property, a single-family residence on Crestview Circle, Wallingford, to perform tests and surveys in connection with the planned construction of the Delaware County Mid-County Expressway, known as the Blue Route. In August, 1968 the petitioners purchased property in Cape May County, New Jersey, contracted to have a home built there, and moved to that residence in May, 1969. On May 21, 1969, in response to an inquiry from the petitioners, DOT advised them that the proposed Blue Route would require a total taking of the Crestview Circle property and that an offer would be forthcoming in a month to six weeks' time. By letter of June 20, 1969, DOT offered the petitioners $42,500.00 and indicated that possession would be required by October 1, 1969. The petitioners were next contacted by DOT by letter of November 26, 1969 in which they were notified that acquisition of their property had been deferred and that the previous offer was withdrawn unless it should later be reinstated in writing. In December, 1969 the petitioners began renting the Crestview Circle property and have continued renting it from that time.

Our scope of review in a case where the trial court has sustained preliminary objections to a petition for appointment of viewers is limited to determining whether or not the findings are supported by competent evidence or an error of law has been committed.

[ 68 Pa. Commw. Page 509]

notified promptly, in which event, its November 26, 1978 preliminary objections would have been untimely filed, the petitioners did not object below to their timeliness, and they failed, thereby, to preserve the issue for review upon appeal. The petitioners responded to DOT's preliminary objections by way of an "answer" in which the timeliness of the former pleading was not challenged. However, the proper manner in which to raise a challenge to the preliminary objections would have been by a preliminary objection to the preliminary objections in the form of a motion to strike for lack of conformity to law or rule of court. Pa. R.C.P. No. 1017(b); Milk Marketing Board v. Sunnybrook Dairies, Inc., 32 Pa. Commonwealth Ct. 313, 379 A.2d 330 (1977). Having failed to raise the matter below, the petitioners are deemed to have waived their objection to the untimeliness of DOT's pleading. Rufo v. Bastian-Blessing Company, 417 Pa. 107, 207 A.2d 823 (1965).

Preliminary objections admit as true all facts which are well and clearly pleaded, but not the pleader's conclusions or averments of law, Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 281 A.2d 909 (1971). The question before us, therefore, is whether or not the trial court erred in determining that averments contained in the petitioners' petition for the appointment of viewers, when so ...

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